Section
There are two views on whether co-ownership arising by operation of law confers a right of pre-emption before that co-ownership is definitively established.
The first is that no right of pre-emption arises. This is the position Ashhab reports from Mālik in the original record of what he heard from him.
The second is that a right of pre-emption does arise. This is Ashhab’s own view. The report reads as follows:
Mālik was asked: “I was granted one hundred and fifty qafīz in a valley-side tract, with ten cubits between each pair. Some of the landowners in that tract subsequently sold it. Do I have a right of pre-emption over what they sold?”
He replied: “I do not think you have a right of pre-emption.”
The man said: “They neither demarcated it nor partitioned it, nor did they specify whether my holding was at the upper or lower end of the orchard.”
He replied: “I do not consider you entitled to pre-emption. It seems to me that they allotted you a specified number of cubits.”
The man said to Mālik: “They did not assign them to any particular part of the tract. Where, then, am I to find them: at its upper end or its lower end?”
He replied: “I do not know. Go to the judge.”
Ashhab said: “Mālik—may Allah have mercy on him—erred in the ruling he gave this man. I consider him entitled to pre-emption, because he was granted one hundred and fifty qafīz comprising a specified number of cubits. They were not assigned to a particular location where they could be individually identified, in which case he would have no right of pre-emption. Rather, he was merely granted a number of cubits without being assigned a particular, demarcated location that would identify his holding within the tract. Granting him a number of cubits within it makes him a co-owner throughout the tract, from its upper end to its lower end, in proportion to those cubits’ share of its total area.
“This is like someone who owns an orchard containing one hundred palm trees and gives a man ten of them without identifying the individual trees: the recipient becomes a co-owner of one tenth of the orchard. If either the donor or the recipient sells before partition, a right of pre-emption arises.”
Al-Majmūʿa contains reports from Ashhab and Ibn Nāfiʿ agreeing with Mālik’s position—may Allah have mercy on him—that no right of pre-emption arises in this case. Ashhab, however, interpreted this as meaning that the gift comprised only the qufz, not the land, and that this was why Mālik did not consider the recipient entitled to pre-emption.
A case of this kind arose involving our colleague, the jurist Abū al-Qāsim Asbagh ibn Muhammad—may Allah have mercy on him—in the village of Nasān. Its owner died, and he purchased the shares of some of the heirs. Before his death, however, the owner had sold another man an undivided holding of two zawj of sowing land within the village, and that purchaser then brought a claim against him